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Since the last ARL Policy Notes update on the Court Cases on Trump’s Travel Ban (March 16, 2017), two federal courts of appeals, the Ninth Circuit and the Fourth Circuit, have upheld the district court opinions enjoining enforcement of the Executive Order suspending entry into the United States for nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen (other than lawful permanent residents, visa holders or dual nationals). The district courts in Hawaii and Maryland found that the bans were unlawful because they were issued in order to disfavor a particular religion, pointing to Trump’s previous statements asserting his intent to issue a “Muslim ban.”

On May 24, 2017, the Fourth Circuit issued its opinion and, relying on previous statements made by Trump and his administration, found that the ban violated the Establishment Clause of the Constitution by disfavoring Muslims. Whether the court would look to the extrinsic evidence of campaign and other statements as evidence of the Executive Order’s purpose was an open question; the Fourth Circuit unquestionably determines that they should in this particular case because there is a “substantial, specific connection between it and the challenged government action.”

In its decision upholding the injunction, the Fourth Circuit’s majority noted, “The evidence in the record, viewed from the standpoint of the reasonable observer, creates a compelling case that EO-2’s primary purpose is religious,” citing the many statements made by Trump as candidate and statements by his associates made around the time the executive orders were issued. The majority concludes:

These statements, taken together, provide direct, specific evidence of what motivated both EO-1 and EO-2: President Trump’s desire to exclude Muslims from the United States. The statements also reveal President Trump’s intended means of effectuating the ban: by targeting majority-Muslim nations instead of Muslims explicitly. And after courts enjoined EO-1, the statements show how President Trump attempted to preserve its core mission: by issuing EO-2—a “watered down” version with “the same basic policy outcomes.” J.A. 339. These statements are the exact type of “readily discoverable fact[s]” that we use in determining a government action’s primary purpose. McCreary, 545 U.S. at 862. They are explicit statements of purpose and are attributable either to President Trump directly or to his advisors. We need not probe anyone’s heart of hearts to discover the purpose of EO-2, for President Trump and his aides have explained it on numerous occasions and in no uncertain terms. See Glassroth v. Moore, 335 F.3d 1282, 1296 (11th Cir. 2003) . . . EO-2 cannot be read in isolation from the statements of planning and purpose that accompanied it, particularly in light of the sheer number of statements, their nearly singular source, and the close connection they draw between the proposed Muslim ban and EO-2 itself.

The Fourth Circuit similarly rejects the Administration’s argument that the Executive Order is warranted on national security grounds:

And EO-2’s text does little to bolster any national security rationale: the only examples it provides of immigrants born abroad and convicted of terrorism-related crimes in the United States include two Iraqis—Iraq is not a designated country in EO-2—and a Somalian refugee who entered the United States as a child and was radicalized here as an adult. EO-2, § 1(h). The Government’s asserted national security purpose is therefore no more convincing as applied to EO-2 than it was to EO-1.

Ultimately, the court concludes that because of the statements made leading up to the issuance of the two executive orders:

EO-2 cannot be divorced from the cohesive narrative linking it to the animus that inspired it. In light of this, we find that the reasonable observer would likely conclude that EO-2’s primary purpose is to exclude persons from the United States on the basis of their religious beliefs. We therefore find that EO-2 likely fails Lemon’s purpose prong in violation of the Establishment Clause.22 Accordingly, we hold that the district court did not err in concluding that Plaintiffs are likely to succeed on the merits of their Establishment Clause claim.

The Fourth Circuit noted that while courts generally try to avoid deciding a case based on constitutional grounds if it can be decided on statutory grounds, “the district court’s constitutional ruling was necessary to its decision, and review of that ruling is necessary to ours.” Three judges dissented.

By contrast, while the Ninth Circuit reached the same end result when it released its opinion on June 12, 2017 — upholding a lower court’s decision to enjoin the enforcement of the travel ban — it explicitly declined to decide the case on constitutional grounds. Instead, the Ninth Circuit focused on a different legal basis for upholding the injunction: whether the Executive Order was valid under the Immigration and Nationality Act (INA). The Ninth Circuit notes that courts should not issue “unnecessary constitutional rulings” and “we think it appropriate to turn first to the INA claim . . . we conclude that the Plaintiffs have shown a likelihood of success on the merits of that claim and that the district court’s preliminary injunction order can be affirmed in large part based on statutory grounds . . . we need not, and do not, reach the Establishment Clause claim to resolve this appeal.” The decision by the Ninth Circuit was an unsigned, unanimous (per curiam) opinion.

The Ninth Circuit examines the INA and what powers Congress has delegated to the President. The court notes that Section 1182(f) gives the President “broad authority to suspend the entry of aliens or classes of aliens” but “requires that the President find that the entry of a class of aliens into the United States would be detrimental to the interests of the United States.” The opinion concludes that President Trump did not make sufficient findings, as required by the INA, that entry of nationals of these six designated countries (as well as entry of all refugees in a separate section) “would be detrimental to the interests of the United States.”

Additionally, the Ninth Circuit points out that Congress does not permit nationality-based discrimination under the INA and:

We cannot blind ourselves to the fact that, for nationals of the six designated countries, EO2 is effectively a ban on the issuance of immigrant visas. If allowed to stand, EO2 would bar issuance of visas based on nationality in violation of [Section] 1152(a)(1)(A) . . . the whole system of the visa issuance would grind to a halt for nationals of the six designated countries whose entry is barred from the United States. Issuance of visas will automatically stop for those who are banned based on nationality. Yet Congress could not have used “more explicit language” in “unambiguously direct[ing] that no nationality-based discrimination shall occur.”

The Ninth Circuit rejects the Government’s argument that the President could validly bar entry of individuals from the six designated countries because Section 1152(a)(1)(A) applies to the issuance of visas, noting “Under the Government’s argument, the President could circumvent the limitations . . . by permitting the issuance of visas to nationals of the six designated countries, but then deny them entry. Congress could not have intended to permit the President to flout [Section] 1152(a) so easily.” Additionally, quoting the brief of amici technology companies, the Ninth Circuit points out, “‘Congress could not have intended to prohibit discrimination at the embassy, but permit it at the airport gate.'”

In an interesting footnote, the Ninth Circuit also suggests that President Trump’s Twitter feed is an appropriate means to determine the purpose and rationale of the Executive Order. Footnote 14 provides:

Indeed, the President recently confirmed his assessment that it is the ‘countries’ that are inherently dangerous, rather than the 180 million individual nationals of those countries who are barred from entry under the President’s “travel ban.” See Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 6:20PM), https://twitter.com/realDonaldTrump/status/871899511525961728 (“That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!”) (emphasis in original); see also Elizabeth Landers, White House: Trump’s tweets are “official statements”, CNN (June 6, 2017, 4:37PM), http://www.cnn.com/2017/06/06/politics/trump-tweets-official-statements/ (reporting the White House Press Secretary’s confirmation that the President’s tweets are “considered official statements by the President of the United States”). We take judicial notice of President Trump’s statement as the veracity of this statement “can be accurately and readily determined from sources whose accuracy cannot reasonably be quested.” Fed. R. Evid. 201(b)(2).

It should be noted that in the various lawsuits regarding both the initial Executive Order and second Executive Order, often brought (in part) by state governments, standing was found for the states based on harms asserted by state universities. The courts have acknowledged that colleges and universities have students, faculty, researchers, and staff who would be impacted by the executive orders.

Each amicus has a global mission and benefits from the contributions of diverse students, faculty, staff, and scholars from around the world. Because amici seek to educate future world leaders, attract the world’s best scholars, faculty, and students, and work across international borders, they rely on their ability to welcome international students, faculty, and scholars into their communities. In light of their educational missions, amici have a strong interest in ensuring that individuals from around the globe can continue to enter the United States and share their unique skills and perspectives.

College and university amici point out that they have numerous students, faculty and scholars from countries outside the United States. It provides data points from some of the amici. For example, international students made up 16% of Columbia’s undergraduate population and 38.7% of its graduate population. Duke’s international students made up 10% of its undergraduate population and 47% of its graduate population. Rice’s figures were 12% and 39.5%, respectively. The brief notes that 30% of its faculty appointees are international, and 50% of its academic professionals (including librarians, professional researchers, specialists, and postdoctoral fellows) and 50% of its visiting faculty and researchers are international. More than 40% of MIT’s faculty is international, while 10% of Yale’s faculty is international and 65% of its postdoctoral researchers are international.

Specifically, the brief also points to its international students, faculty and scholars from the six countries affected by the Executive Order:

For example, Princeton has more than 50 students and employees from the six affected countries, and its graduate school received approximately 150 applications for fall 2017 alone (and more than 700 applications in the past five years) from students from those nations. Brown has more than 20 students and scholars from the countries affected by the Order. Penn has three undergraduate students, 32 graduate and professional students, and two students admitted for the fall of 2017 from the countries covered by the Order. The University of Chicago has 23 students from Iran, as well as one student from Syria and a recent graduate from Syria who is employed under Optional Practical Training and University sponsorship. Northwestern is home to 45 students and 22 scholars from Iran, as well as two students from Syria, one from Sudan, and one from Yemen. Rice has 44 students and scholars from Iran alone. Carnegie Mellon has 31 students and 10 faculty and scholars from the six affected countries at its U.S. locations. And Duke currently has 37 individuals—enrolled as students or employed as postdoctoral fellows or faculty—from the countries affected by the Order. Harvard University counts 45 students and 63 scholars present on nonimmigrant visas from the six countries named in the Order, along with 77 dependents from those countries, and has admitted 23 students from the six countries for the fall of 2017. MIT counts 56 degree and non-degree students from the six countries identified in the Order. These are just a few of the universities where students, faculty, and scholars from the six affected countries make invaluable contributions to amici’s communities.

The brief appoints to great benefits international diversity provides to college campuses, “promot[ing] the free exchange of ideas, encouraging individuals to consider issues from different perspectives and giving students and faculty a greater understanding of our global, pluralistic society.” It cites the Supreme Court’s decision in Fisher v. University of Texas, which “held that universities have a compelling interest in obtaining the ‘educational benefits that flow from student body diversity.”

Additionally, the brief notes that enrollment and employment of international individuals adds great value to the United States. Amici point to an estimate that “international students directly contributed $32.8 billion to the United States economy and supported or contributed to the creation of 400,000 American jobs in the 2015-16 academic year.” Another study “found that more than one third of United States innovators were born outside the country , and another ten percent have at least one foreign-born parent.”

The brief also points to the great achievements, including by those from the six designated countries:

The benefits from international students, faculty, and scholars at American universities are not just economic. As noted above, these individuals make significant discoveries and contributions in their fields. Since 2000, forty percent of all American Nobel prize winners in Chemistry, Medicine, and Physics have been immigrants—and in 2016, all six American winners of the Nobel Prize in economics and scientific fields were immigrants. These awards “represent great individual achievement but also reflect the state of research, openness and scientific advancement within [American] society.” Amici have seen these successes up close. For example, in 2014, Maryam Mirzakhani was the first woman to win the Fields Medal, known as the “Nobel Prize of Mathematics.” Mirzakhani grew up in Iran before earning her Ph.D. at Harvard and becoming a professor at Princeton and then Stanford. Professor Muawia Barazangi came to the United States from Syria for graduate study after earning his undergraduate degree from the University of Damascus; he earned a Ph.D. from Columbia before joining the faculty at Cornell, where he became a United States citizen and had a long and distinguished research and teaching career in the field of Earth Sciences. Syrian-born Dina Katabi, a professor at MIT, came to the United States for graduate study at MIT, and has since won a Macarthur “Genius” grant for her work on improving wireless network efficiency and security. Carnegie Mellon’s current President, Subra Suresh, is an immigrant (as was its founder, Andrew Carnegie); President Suresh came to the United States “at age 21 with a partially filled suitcase, less than $100 in cash, and a one-way airplane ticket purchased with a loan.” President Suresh went on to study at several United States universities, to join the faculty at Brown and the Massachusetts Institute of Technology, and, before joining Carnegie Mellon, to be nominated by the President and unanimously confirmed by the Senate as the Director of the National Science Foundation. (citations omitted)

Other distinguished alumni or former faculty and researchers “return to their home countries with a deeper understanding of and appreciation for the United States and its values . . . [or] become leaders in their home countries.”

The brief states that the Executive Order harms amici’s students, faculty and scholars because it “divides current students and their families, impairs the ability of American universities to draw the finest international talent, and inhibits the free exchange of ideas.” In addition to harming prospective and current students, faculty and researchers, the Executive Order

will impede successful academic collaboration in the United States. American universities host thousands of conferences and symposia each year. These academic meetings are incubators for innovation and thrive on the free flow of information and ideas . . . international universities have observed that the Executive Order and its predecessor will impede collaborative partnerships with American Universities. And these effects are already being felt. For example, the University of Pennsylvania had planned to invite three Iranian human rights activists to a conference in March, but with the Executive Order in effect, their participation would be barred. Similarly, a faculty member at Dartmouth planning a conference for next fall has expressed concern that participants may not be able or willing to travel to the United States, and one keynote speaker has wondered whether it “sends the wrong message” to attend a conference in the United States at this time. Participants in a conference at the Harvard Center for Middle Eastern Studies are voluntarily withdrawing due to current United States immigration policies or perceptions thereof. The Sharmin & Bijan Mossavar Rahmani Center for Iran and Persian Gulf Studies at Princeton expressly aims to advance understanding of Iran and the Persian Gulf; if the Center cannot invite Iranian guest speakers, the Center obviously will be impeded in serving its mission.

What is more, faculty members from around the world already have called for a boycott of academic conferences in the United States in response to the Executive Order and its predecessor. A petition circulating online has drawn thousands of signatures from scholars in the United States and abroad pledging not to attend international conferences in the United States while the travel ban persists; it continues to garner new signatures under the revised Executive Order. Thus, the Executive Order threatens collaboration well beyond scholars from and institutions in the six affected countries.

The Trump Administration has already asked the Supreme Court to review the case. Should the Supreme Court agree to hear the case (and there is no indication thus far whether it will so), it would likely not hear oral arguments until after the fall term begins in October.

On May 19, 2017, ARL released its latest Advocacy and Public Policy Update. The topics covered in this update include various copyright issues (Register of Copyrights bill, Copyright Office study on moral rights, Copyright Office rulemaking on modernizing copyright recordation, and numerous amicus briefs filed), LSU v. Elsevier, appropriations, access to and preservation of government data, net neutrality, developments on trade agreements, and issues related to immigration and border control. The full update is available here.

Over the last 24 hours, several courts have issued opinions regarding President Trump’s recent executive orders banning entry of certain nationals and refugees into the United States. While recent court opinions have imposed temporary restraining orders, how the executive orders fare on appeal (whether they are considered legitimate exercises of executive power or whether they violate the Establishment Clause) may hinge on whether Trump’s and Administration officials’ statements regarding the travel ban may be considered in determining the purpose of the executive orders.

Background

Following President Trump’s two executive orders, numerous lawsuits were filed across the nation. After Executive Order 13,769 was issued on January 27, 2017, district court Judge Robart issued a temporary restraining order against enforcement of certain portions of the Executive Order in Washington v. Trump. The Ninth Circuit denied the Government’s motion for a stay of the temporary restraining order in that case.

The Trump Administration then issued another Executive Order, No. 13,780 on March 6, 2017, designed to replace the prior Order. This Executive Order made some changes, suspending entry for nationals of six countries (Iran, Libya, Somalia, Sudan, Syria and Yemen) for 90 days, but did not apply to lawful permanent residents, holders of valid visas, dual nationals or certain other categories of people. It also included a “waiver provision” allowing foreign nationals of these countries to seek entry on a case-by-case basis. Another section of the Executive Order suspends refugee admissions for 120 days and also has a waiver provision to be determined on a case-by-case basis. Once again, numerous lawsuits were filed nationwide.

District Court Decisions

In the last day, two federal judges have blocked portions of this new Executive Order from enforcement. The first decision came yesterday evening on March 15, 2017, from district court Judge Watson in Hawaii v. Trump. Judge Watson’s order enjoins enforcement of the sections discussed above “in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas . . . pending further orders from this Court.” The Order therefore applies worldwide. In issuing this order, Judge Watson found that, based on numerous statements by Trump and Administration officials, “a reasonable, objective observer . . . would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose” and would result in irreparable harm. Notably, Judge Watson relied on precedent set forth by the Ninth Circuit’s opinion in Washington v. Trump that courts could look beyond the plain language of the law for evidence of its purpose. Judge Watson does, however, caution that prior statements by Trump or Administration officials do not “forever taint any effort by it to address the security concerns of the nation” and “context may change during the course of litigation.” This morning, March 16, 2017, a Maryland district court Judge Chuang also issued a restraining order in International Refugee Assistance Project v. Trump. Judge Chuang also pointed to the history of public statements as evidence that the Executive Order represented a “Muslim ban.” Chuang’s order will apply only to the portion of the Executive Order suspending of nationals from six countries and does not sweep as broadly.

While the judges in Hawaii and Maryland have blocked enforcement of portions of the new Executive Order, five judges from the Court of Appeals from the Ninth Circuit issued a dissent on March 15, 2017 from the Ninth Circuit’s denial of reconsideration of Washington v. Trump by an en banc panel. As noted above, the Ninth Circuit previously upheld a district court’s temporary restraining order. Following the issuance of the new Executive Order, the U.S. government filed an unopposed motion to dismiss its underlying appeal, which was granted. Despite the mootness of the appeal, one judge requested rehearing by the full court, but did not garner the votes for rehearing. These five judges, all Republican appointees, signed a dissent stating that the original Executive Order “was well within the powers of the presidency” and that the Ninth Circuit’s opinion was a “fundamental error.” These five judges argued that “Even if we have questions about the basis for the President’s ultimate findings—whether it was a ‘Muslim ban’ or something else—we do not get to peek behind the curtain. So long as there is one ‘facially legitimate and bona fide’ reason for the President’s actions, our inquiry is at an end.” The dissent also argues that the original Ninth Circuit’s panel opinion “stands contrary to well-established separation-of-powers principles.” Ultimately, the Ninth Circuit will likely have another opportunity to rehear these issues in the context of Hawaii v. Trump.

Additional Information

There are a number of ongoing suits against the travel ban. A roundup of documents for each of the cases is available here.

Unless otherwise noted, posts after January 10, 2014 are written by Krista L. Cox, Director of Public Policy Initiatives at ARL. Some of the content here will not be written or created by ARL, but rather will be collected from elsewhere on the web. Quotation does NOT imply endorsement!

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02/19/2019 at 3:09pmI first saw this discussed on Twitter, now WaPo has an article on Justice Thomas' concurrence in a denial of cert, but that urges reexamining the 1st & 14th Amendments in libel cases (i.e. a reexamining of NYT v Sullivan) https://t.co/lCwY85MEO0